On Exploitation

Exploitation is a foundational concept in the governance of AHR. Scholarship on surrogacy arrangements written by feminists,^{Footnote 17} philosophers,^{Footnote 18} and legal scholars^{Footnote 19} in the 1980s and 1990s assessed the social, ethical, political, and legal challenges of assisted reproductive technologies, often finding that the exploitative potential of surrogacy was greater than any of the possible benefits. With the proliferation of this literature, a number of scholars examined the extent to which exploitation was being “overused and misused”^{Footnote 20} to assert that there was something inherently wrong with the practice.^{Footnote 21} These works collectively demonstrated that an overly flexible and underdeveloped notion of exploitation was deployed in scholarship condemning surrogacy and doing so without considering the meaning and potential applications of the concept.

Exploitation relies, first, on an understanding that the “exploiter” is using the person or thing being exploited. Exploitation is a relationship of utility in which one party benefits from the use of another, and though the results need not be negative for the exploited party—indeed, both parties can benefit—the exploiter must gain more from the relationship than the “exploitee.” Exploitation in these terms is consistent with economic and legal theorizations of exploitation, in which exploitation involves an exchange where what is paid is less than the value of the product or service acquired.^{Footnote 22}

Exploitation also requires that the relationship or exchange in question play on some vulnerability of the exploitee. The vulnerability may be solely economic, insofar as the exploiter(s) may have greater socioeconomic resources than the exploitee, but it may also involve other markers of identity, such as race, class, physiological or mental disability, sexual orientation, family or marital status, and age, that may put the exploitee in a position of sociocultural vulnerability or render them otherwise susceptible to harm.

The extent to which the unfair nature of the relationship is harmful to the exploitee is important in determining whether or not policy intervention is needed. While scholars such as Alan Wertheimer have argued that some exploitative relationships may be morally acceptable to the extent that they result in net benefits to the exploitee,^{Footnote 23} such arguments typically focus on individual conceptions of harm.^{Footnote 24} Other scholars have challenged this model, theorizing broader understandings of possible harm that include the cumulative social effects of exploitative relationships. For example, if surrogacy arrangements result in the commodification of childbearing and women’s reproductive capacity, there may be harms incurred beyond the circumstances of individual arrangements. From this view, though some individual relationships of exploitation may be “relatively benign”^{Footnote 25} or even seemingly result in net benefits to the exploitee, the overall effect of condoning such relationships may have a detrimental effect on society, which must be taken into consideration in determining the occurrence of harm.

Unless there is some reason to see the exploitative relationship as necessarily harmful, then the existence, or the purported existence, of exploitation fails to merit policy intervention. The simple elements of exploitation articulated above—that is to say, use and vulnerability—are rife in our society, and not all are seen to necessitate policy intervention. Rather, a robust theorization of exploitation must consider not only use and vulnerability, but also whether the exploitee feels “forced or compelled to accept attractive offers that they otherwise would not accept and assume increased risk in their lives,” as well as the social implications of allowing the exploitative relationships to continue.^{Footnote 26} Otherwise put, exploitation is part of the unequal exchanges of our everyday lives, but certain kinds of exploitative relationships are more problematic than others. The use of exploitation as a rationale for public policy must, then, be considered in relation to the view of the exploitee and to whether the harms being done (including cumulative social harms) are great enough to infringe on the exploitee’s capacity to partake in the potential benefits. This consideration includes whether the harms being done are substantive enough in relation to the potential benefits to necessitate government intervention, whether viable alternatives exist, and finally, whether the potential interventions may offset the harms.

Exploitation in the Canadian Policy Debates on AHR

The use of exploitation as a policy rationale to govern AHR emerged in the Canadian context in relation to commercial surrogacy arrangements. As early as 1983, the Canadian media was engaged in discussions about the legitimacy of surrogacy,^{Footnote 27} and in the same year, the Canadian Medical Association urged physicians to be cautious about participating in the creation of surrogate pregnancies until the law was clarified.^{Footnote 28} At the same time, the Ontario Law Reform Commission (OLRC) was studying^{Footnote 29} the matter of assisted human reproduction, and in 1985, it issued an expansive two-volume report that advocated for limited compensation for both surrogates and gamete donors.^{Footnote 30}

There was divergence among the commissioners as to what compensation should include, be it simple reimbursement for medical expenses, or payment for lost income or emotional pain and suffering associated with giving up a child. Nevertheless, commissioners were generally opposed to an outright payment-for-services that might result in the exploitation of surrogate mothers, and they recommended that compensation (at the discretion of family court judges) be established on a case-by-case basis.^{Footnote 31} For egg donors, the Commission recommended compensation for reasonable expenses based on “time and inconvenience.”^{Footnote 32} Egg donors would be eligible for higher rates of compensation than sperm donors due to the invasive nature of egg retrieval, and although it did not advocate higher payments for “discomfort,”^{Footnote 33} the Commission stated that, due to the risk of needing long-term treatment to address the side effects of superovulation, higher payments for expenses incurred could be justified.^{Footnote 34} The report expressed concern about the vulnerabilities of women engaging in AHR as surrogates and egg donors, and while the OLRC was concerned with the potential commodification of human life through payment for surrogacy and egg donation, commissioners were confident that compensation, if regulated, would not be construed as payment, and that it would not necessarily result in exploitative arrangements.

In the years following the OLRC’s report, the sense of urgency around government intervention in AHR grew,^{Footnote 35} and by 1989, the Government of Canada called for a Royal Commission on New Reproductive Technologies to investigate the field and make relevant recommendations.^{Footnote 36} In 1993, when the Royal Commission released its report, it included chapters addressing egg donation and surrogacy, as well as much discussion of the problems associated with commercialization. Regarding surrogacy (or “commercial preconception arrangements”), the Royal Commission took a strong position against the practice, citing significant concerns about the “exploitative nature” of surrogacy arrangements.^{Footnote 37} Much of their reasoning in this regard was tied to the perceived socioeconomic disparities between potential surrogates and intended parents based on a 1988 study by Margrit Eichler and Phebe Poole conducted for the Law Reform Commission of Canada.^{Footnote 38}

The Royal Commission also took a strong view on egg donation. It broadly recommended that egg donation be prohibited, except where women were already undergoing egg retrieval for their own fertility treatment or were undergoing medical procedures (i.e., chemotherapy) that might harm their fertility. According to the Royal Commission, ovarian stimulation and egg retrieval should not be performed on otherwise healthy women simply for the benefit of others, as the physiological risks were seen to be so significant that only women already at risk could consent to participating.^{Footnote 39} The Commission rejected altruistic donation to family members and to strangers on the grounds that the physiological risk and the risk of exploitation were too great to justify otherwise healthy women’s participation.^{Footnote 40} Egg donation for pay was seen to be especially problematic due to the added elements of commercialization and economic exploitation at play.

The Royal Commission released its report in December 1993, and it was not until June 1995 that the federal government issued its response. The response, a voluntary moratorium on nine technologies that the Royal Commission viewed as particularly objectionable, included bans on payment for egg donation and surrogacy.^{Footnote 41} The voluntary nature of this moratorium, however, was widely criticized for not going far enough in seeking to prevent these activities,^{Footnote 42} and there were reports of refusals on the part of “researchers and clinicians” to adhere to the bans.^{Footnote 43} Within the year, the federal government introduced a bill (Bill C-47) to criminalize the practices included in the voluntary moratorium (as well as a few others) as part of a multistage legislative approach that, after consultation with the provinces, would include a pan-Canadian regulatory framework.^{Footnote 44} Bill C-47 included a preamble that identified the potential for the exploitation of women in the commercialization of human reproduction and the sale of reproductive materials, and it banned payment for gametes and surrogacy as well as the repayment of relevant expenses.^{Footnote 45} The issue of payment was intensely debated, but the point was rendered moot when Bill C-47 died on the Order Paper in the spring of 1997.

After more failed attempts at legislation, in 2001, then-health minister Allan Rock took the unusual step of presenting draft legislation to the Standing Committee on Health prior to its introduction in the House of Commons.^{Footnote 46} The draft legislation was closely scrutinized by members of the Standing Committee in consultation with a wide range of stakeholders, and in December 2001, the Standing Committee released a report on the draft legislation entitled Assisted Human Reproduction: Building Families.^{Footnote 47}Building Families largely reiterates the positions of the Royal Commission vis-à-vis payment for surrogacy and egg donation, namely that paid surrogacy should be criminalized because it “treats children as objects and treats the reproductive capacity of women as an economic activity.”^{Footnote 48} Non-commercial surrogacy was also objectionable to the Committee, but they recommended mere discouragement rather than prohibition in this regard.^{Footnote 49} As for egg donation, the Standing Committee opposed all payment, including reimbursement of expenses, though unlike the Royal Commission, it generally accepted altruistic egg donation.^{Footnote 50}

Building Families was tabled in December 2001, and in May of the following year, the Assisted Human Reproduction Act was introduced in the House of Commons. Though the Act generally follows the legislative scheme proposed by the Royal Commission and taken up in C-47, it takes neither the strong position against egg donation championed by the Royal Commission, nor the more discretionary approach originally advocated by the Ontario Law Reform Commission.^{Footnote 51} Instead, the AHRA bans payment for surrogacy (section 6) and egg donation (section 7) and permits both practices if done altruistically. Though it is not illegal under the Act to receive payment for surrogacy or egg donation, it is illegal to “pay consideration to a female person to be a surrogate mother” and to purchase eggs from a donor or “a person acting on behalf of a donor.”^{Footnote 52} The penalty for contravening the law is a fine of up to $500,000, a jail sentence of up to ten years, or both.^{Footnote 53} Section 12 of the AHRA also includes provisions about the repayment of expenses to surrogates and egg donors in accordance with regulations to be developed. The bill failed to pass on two occasions; it was twice reintroduced, and it received Royal Assent in April 2004.

In the ten years since the Act’s passage, the status of the governance of AHR in Canada has changed significantly. Following a constitutional challenge to the regulatory provisions of the Act, the section of the Act that provided for potential compensation through regulation is no longer in force.^{Footnote 54} Given the tentative approach of the federal government (under Health Canada) in making regulations following the upheaval that the case wrought, it is uncertain when and whether regulations will come.

The history of the governance of AHR in Canada suggests, then, that there have been tenuous grounds for the ban on payment, at least in the name of exploitation. The presumption that if payment is banned, exploitation will be reduced, has been articulated and reiterated throughout the history of this policy and despite a lack of evidence of either the problematic nature of payment or the existence of exploitation. Furthermore, by connecting exploitation and payment, the bans on commercial surrogacy and egg donation fail to acknowledge the subtleties of consent, the many grey areas between commercial and altruistic participation, and the migration of women who want to act as egg donors and surrogates into paid underground arrangements in which an “aura of illegality”^{Footnote 55} pervades. Taken together, these critiques broadly correspond to the three underlying assumptions of the AHRA’s ban on payment that this paper studies.

Assumption: Women Are Being Exploited or Are Likely To Be Exploited

The AHRA’s prohibition on payment for surrogates and egg donors was part of every incarnation of public policy on assisted reproduction from the Royal Commission forward.^{Footnote 56} The prohibition was made partly on the grounds that the commercialization of human life and of women’s reproductive capacity is inherently unethical.^{Footnote 57} However, it was also made on the grounds that both practices—surrogacy and egg donation—when commercialized, make women vulnerable to unfair exploitation through the exchange of money for their reproductive labour.^{Footnote 58}

When these concerns were expressed at the time of the Royal Commission and in relation to surrogacy, they were validated in reference to, as mentioned above, Eichler and Poole’s 1988 study for the Law Reform Commission of Canada.^{Footnote 59} This landmark study involved identifying cases of surrogacy through information derived from a wide variety of sources (e.g., journalists, lawyers, social workers, judges) external to the arrangements and did not involve discussions with surrogates themselves. Drawing from approximately 118 identified cases of surrogacy involving Canadians, Eichler and Poole were able to perform an analysis of thirty-two cases from the files of a well-known American surrogacy lawyer, Noel Keane. The authors assessed the marital status, education levels, occupations, age, and religious affiliations of Keane’s clients in cases involving Canadians. They found, for the most part, that intended parents were older, more educated, and more affluent than the surrogate mothers they commissioned.^{Footnote 60} For the Royal Commission, the disparities in socioeconomic location were reason enough to assume that exploitation was occurring.^{Footnote 61} The inequalities between intended parents and surrogates identified in Eichler and Poole’s report, in conjunction with the testimony of some feminist organizations concerned about the potential exploitation of women, and particularly about already-marginalized women,^{Footnote 62} was sufficient for the Commission to assert that surrogates were, as a group, too vulnerable to participate in surrogacy arrangements, “no matter how willing they might be to participate, because they can never negotiate on equal footing with the other parties.”^{Footnote 63}

However, despite the exploitation (or, at least, the potential exploitation) of donors and surrogates articulated again and again in the policy debates, Eichler and Poole’s 1988 study is the only instance cited of Canadian-based research on potential exploitation of surrogates, not to mention of egg donors. Most often, Parliamentarians simply use the Royal Commission’s citation of Eichler and Poole’s work to declare that exploitation is occurring. For example, when Bill C-47 was tabled in 1996, the Liberal member of Parliament Andy Scott and then-secretary of state for the status of women Hedy Fry repeated the language of the Royal Commission regarding surrogates, stating that the socioeconomic disparities between surrogates and intended parents and the risks of egg donation were too great to allow women to participate “on equal footing” if pay were involved.^{Footnote 64} Five years later, in committee testimony on draft legislation (of the AHRA) considered by the Standing Committee on Health, the committee chair, Bonnie Brown, noted that the Standing Committee’s report “leaned fairly heavily” on the Royal Commission’s surrogacy work, which, again, was based largely on Eichler and Poole’s early study.^{Footnote 65}

What is important here is that the early research on exploitation cited by the Royal Commission and repeated in the debates over Bill C-47 and the proposed AHRA is the only evidence of exploitation ever cited in the policy debates on AHR in Canada. No other statistics, anecdotes, or arguments beyond the hypothetical were offered, and though experts acknowledged this lack of evidence and suggested that the onus was on Parliament to demonstrate the imminence of harms, no evidence was provided. Other than Eichler and Poole’s work on surrogacy, no empirical support was presented about claims of exploitation in egg donation, no egg donors ever testified before a parliamentary committee, and the one surrogate who did so stated that her experiences and those of the women she has worked with have not been exploitative.^{Footnote 66} Compensation was made criminal, largely, again, according to the unsubstantiated claim that exploitation was, if not rife, then imminent.

The landscape of research on exploitation in assisted human reproduction has changed, if only slightly, since the passage of the AHRA. There remains limited empirical research that addresses the Canadian context or, especially, commercial surrogacy. What research does exist suggests a discord between the legal approach to governing surrogacy in Canada and the real-life experiences of surrogates.^{Footnote 67} At the time of this writing, two relevant studies are available in Canada; both were conducted as master’s theses, and each drew on the experiences of a sample of eight or fewer surrogates.^{Footnote 68} Also available is an important meta-analysis of empirical research on surrogacy, which includes one of the two Canadian studies; the analysis concludes that, based on empirical research studies in the United States and the United Kingdom, there are limited grounds for assuming that exploitation of Canadian surrogates is a cause for concern necessitating the prohibition of commercial surrogacy. Authors Karen Busby and Delaney Vun write that existing research “does not support concerns that they [surrogate mothers] are being exploited by these arrangements, that they cannot give meaningful consent to participating, or that the arrangements commodify women or children.”^{Footnote 69}

More scholarship exists on egg donation, especially regarding the circumstances of altruistic donors. Canadian studies have shown that in altruistic situations where donors and recipients are family members or close friends, donors and recipients are more likely to have a similar socioeconomic status, marital or familial situation, and level of education.^{Footnote 70} In their study of fifteen such altruistic donor-recipient relationships, Samantha Yee, Jason Hitkari, and Ellen Greenblatt reported that though these sorts of arrangements risk “manipulating family members to participate because of a differentiated power structure and undue family pressures,” none of the donors in the study reported feeling “pressured or obligated” to donate.^{Footnote 71} A smaller-scale narrative study of women donating eggs to their sisters at a Vancouver clinic reported similar results.^{Footnote 72}

Studies on commercial egg donation are harder to come by, at least in the Canadian context. No academic studies exist on the subject, though freelance journalist Alison Motluk has been engaged in multiyear research examining the experiences of eighteen altruistic and paid egg donors. In pursuing this work, Motluk has carefully identified among her research participants the presentation of what has been described as a rare side effect, ovarian hyperstimulation, and her research suggests that egg donors are not fully informed about the risks of donation and are not getting the kind of follow-up care that they need.^{Footnote 73} Her research further suggests that, paid or otherwise, egg donation is a riskier procedure than egg donors are led to believe, and that, as it is currently practiced in Canada, egg donation may be exploiting women’s healthy bodies.

Thus there remains, even after the passage of the AHRA, limited research on the exploitation of egg donors and surrogates in Canada. The existing scholarship suggests that while commercial surrogacy does not appear to be causing harm to individual women—though there is really too little research for this claim to bear scrutiny, and though there may in fact be cumulative social harms—egg donation, whether for pay or otherwise, poses health risks that need to be considered vis-à-vis claims of exploitation. The problem of basing legislation on the protection of vulnerable Canadians from the harms of exploitation is that, if the harms are unknown, they are not clearly harms at all.^{Footnote 74} Substantive empirical research that engages directly with donors and surrogates is needed in order to identify if and how exploitation is occurring.

Assumption: Exploitation is Contingent on Payment

The second assumption on which the prohibition of compensation for surrogacy and egg donation is based is that exploitation is more likely to occur if payment is involved. This is best demonstrated in the example of egg donation, as arguments used to advocate for the prohibition of egg donation in Parliament relied on a discussion of commercialization.^{Footnote 75} Whereas the Royal Commission sought to prohibit egg donation (and especially paid egg donation) as a means both to protect women’s health and prevent commercialization, Bill C-47 sought to protect women’s health through the prevention of commercialization. The logic was that banning payment would mean that women would not undertake significant physiological risks under duress. When C-47 was tabled in the House of Commons, the parliamentary secretary to the minister of health, Joe Volpe, stated that an egg donor “will undergo invasive and painful medical interventions . . . [and] in exchange for the risk and burdens she will bear, she will go home probably about $2,000 richer but she will have taken unknown risks with her own health and her own future fertility.”^{Footnote 76}

The underlying assumption expressed by Volpe, and found in Bill C-47 and later, in the AHRA, is that the donor’s exposure to the health risks associated with donation are troubling because money is involved. In short, the procedure is exploitative because, in exchange for financial compensation, she exposes herself to significant physiological risks. It is noteworthy, though, that the same donor could face those same physiological risks by legally, “altruistically” donating, though she would, in that case, receive no material benefits. This marked a departure from the arguments of the Royal Commission, which asserted that egg donation was inherently harmful but especially so when pay was involved. Bill C-47 thus involved a shift in the discussions bearing on AHR, from a broad assumption of the exploitative potential of reproductive technologies, to an understanding that exploitation occurs largely in commercial endeavours.

Prohibiting commercial egg donation and surrogacy while the same practices are legal when altruistic fails to address the possibility of coercion that exists in non-commercial arrangements. This possibility was articulated in the policy debates on Bill C-47 and, later, in the discussions of the AHRA. Indeed, though the existing studies of intra-familial egg donation have indicated that these arrangements are often positive, egg donation and surrogacy arrangements involving family and friends have the potential to be particularly coercive or exploitative due to the heightened interpersonal stakes often involved.^{Footnote 77}

Whereas parliamentary debates on commercialization focused on egg donation, assessments of the coercive potential of intra-familial third-party reproduction have focused on surrogacy. In her research on the legality of “gift surrogacy” in the Canadian context, Rakhi Ruparelia has argued that the acceptance of altruistic surrogacy in Canadian law and society depends on a Western understanding of women’s agency that does not consider the constraints on women’s capacity to make choices about reproduction in an inherently patriarchal society.^{Footnote 78} She argues that the social expectation that women will serve as mothers and reproduce for their families, nations, and society, is based on an understanding that women are inherently altruistic, that a woman’s role is to become a mother, and that reproduction is so much a part of being a woman that women should expect no recompense.^{Footnote 79} Furthermore, Ruparelia notes that the possibility of coercion in intra-familial surrogacy may increase in cultural contexts characterized by strong patriarchal norms, and where women may be relegated to “vulnerable and relatively powerless positions within the family and society as a whole.”^{Footnote 80} Ruparelia suggests that a combination of gendered expectations and culturally imposed patriarchal norms may result in situations in which women are coerced into participating in surrogacy arrangements out of a sense of guilt and duty. She argues that the kinds of surrogacy arrangements most likely to be exploitative are those based on gendered and sociocultural vulnerabilities in which payment plays no part.

The assumption that payment must be present for exploitation to occur also fails to acknowledge the possibility that commercial arrangements may be consensual and non-exploitative. Prohibiting paid surrogacy and egg donation while allowing altruistic arrangements implies that women can consent to participate only when economic considerations are not in play. According to this model, women are ostensibly unable to make autonomous, well-informed choices about donating their eggs or being surrogates when financial compensation is involved, though they may consent when economic incentives are removed. Concerns about consent were articulated when the Standing Committee on Health debated Bill C-47, and again when draft legislation was discussed in 2001. Perhaps the strongest instance of the argument emerged in the testimony of Michael Vonn of the British Columbia Civil Liberties Association. Appearing before the Standing Committee in November 2001, Vonn asserted that

If commercial egg donation and surrogacy are seen as unethical because they put women in potentially exploitative relationships, commercialize their reproductive capacities, and (at least in the case of egg donation) expose them to undue physiological risk,^{Footnote 82} prohibiting payment is an insufficient and ineffective means of addressing these challenges. This is not to say that altruistic arrangements should be banned, but rather, that the logic of banning only commercial egg donation and surrogacy is based on a flawed understanding of payment and exploitation as intrinsically linked.

While claims of exploitation in commercial arrangements may be valid (though again, little research to this effect has been done), the desire to protect women from such exploitation is inconsistent with a society where ongoing and pervasive exploitation for economic gain widely occurs. This is particularly true for women, and especially for racialized women, whose well-documented marginalization and ghettoization in the paid labour force often results in exploitative arrangements. Non-standard and temporary labour arrangements, in which women are more likely than men to engage, are likely to have fewer minimum employment standards, lower pay, and less job security, factors associated with exploitative work environments.^{Footnote 83} The concern about exploitation in surrogacy and egg donation seems “hypocritical in a society that turns a blind eye to wholesale exploitation in other ways”^{Footnote 84} and particularly given the ongoing exploitation of women in the market economy.

Often, then, concerns about exploitation regarding commercial surrogacy and egg donation are concerns not about vulnerable woman, but rather about the commercialization of the maternal reproductive body. John Lawrence Hill, for instance, compares “a woman of limited prospects who enters into a surrogacy contract for ten thousand dollars” with the same woman “taking a job washing bathroom floors for the same effort at a similar wage”; in so doing, he draws attention to the broad social acceptability of economic exploitation in certain cases and particularly when reproductive capacity is involved.^{Footnote 85} The problem in the case of commercial surrogacy and egg donation is not economic disparity, or even economic exploitation. It is, rather, the perceived immorality of selling one’s body, and especially one’s reproductive capacity, for profit. Though banning paid surrogacy and egg donation may lead some women to other sites of economic exploitation—domestic work, for example—such exploitation is considered socially acceptable, because though the labour may be gendered, underpaid, and exploitative, women’s sexual and reproductive capacity is not seen to be at issue.

Whether the link between payment and exploitation is seen in terms of women’s inability to consent in already-coercive situations or situations where there may be a risk of exploitation, there is a conceptual inconsistency in prohibiting surrogacy and egg donation in commercial circumstances while allowing the same practices when they are done altruistically. Furthermore, even if women are being exploited, economic exploitation is a reality of contemporary society. Why are women seemingly unable to consent to the use of their bodies for their own economic benefit, particularly when, in many forms of labour, others are able to profit from the results of women’s physical and reproductive work? If the goal of the prohibitions on payment is to protect the vulnerable from exploitation, AHR needs to be reimagined within a broader framework that considers the exploitative potential of intra-familial exploitation, the relationship between AHR and other forms of gendered labour, and a more expansive definition of consent.

Assumption: Exploitation Can Be Effectively Addressed through Prohibition

The final assumption that underlies the ban on commercial surrogacy and egg donation is that in order to prevent exploitation, criminal sanctions are necessary. This assumption relies on the premise that commercial egg donation and surrogacy are either so offensive that they require control through criminal law or, relatedly, that penalties for contravening the law would deter forms of exploitation that a regulatory regime would not.

The decision to criminalize commercial surrogacy and egg donation was highly contentious in debates of Bill C-47 and consideration of the AHRA. The issue was addressed in testimony before the Standing Committee on Health in 1997, when C-47 was considered; critics of criminalization asserted that a legislative scheme so concerned with non-commercialization and non-exploitation that donors and surrogates could not be reimbursed would effectively push them abroad or into underground arrangements, where exploitation would be even more likely to occur.^{Footnote 86} When the draft version of the AHRA was debated in 2001, and later, when it was considered by the Senate Standing Committee on Social Affairs, Science and Technology, Parliamentarians and witnesses stated that the prohibitions were “excessive” and that Canadians would be better served by regulation of compensation rather than outright prohibition.^{Footnote 87}

The issue of banning payment through criminal law has also been the subject of many scholarly interventions. Advocates of the use of criminal law have pointed to its importance as a means of establishing a uniform legislative scheme within a federal framework,^{Footnote 88} and to the relative flexibility of law in responding to changing sociopolitical realities.^{Footnote 89} Conversely, other legal scholars have argued that criminal law is “too blunt”^{Footnote 90} an instrument to regulate a field that so rapidly evolves, and that legal prohibitions would result either in donors and surrogates being forced into problematic underground arrangements or, alternatively, in intended parents seeking out commercial arrangements abroad.^{Footnote 91} These scholars, including Ruparelia, have contested the too-fine line being drawn between altruistic and commercial surrogacy and sought, instead, to establish regulations governing both.

Scholars opposed to criminal prohibition have also argued that, in controversial matters such as AHR, prohibition is largely ineffective. Citing prohibitions on abortion and alcohol use as examples, Alison Harvison Young and Angela Wasunna have suggested that in the context of morality policy,^{Footnote 92} prohibition may do more harm than good. Prohibition, from this view, pushes those engaged in ethically charged activities to pursue those activities outside legal frameworks, where they are likely to put themselves at greater risk of harm. It follows that, due to the risks of undergoing egg donation and the significant investment of time and effort that goes into surrogacy, many women will not participate if they are not paid and will, instead, engage in illegal commercial arrangements that provide compensation. In Canada, where enforcement of the AHRA has been sporadic at best,^{Footnote 93} there may be an expectation among surrogates, donors, clinics, and intended parents that even though the law criminalizes payment, payment can still occur with impunity.